Many questions exist about the FAA's regulatory enforcement program, yet the Office of Chief Counsel has consistently refused to confront them. It became apparent to us the only way courts and Congress will ever come to grips with that program's manifest contradictions is if the facts of how it works come from the mouth of an FAA lawyer. John E. Marsh Jr., an unquestioned expert, voluntarily submitted to eight hours of questioning. The transcript of that is contained on a 3-1/2" floppy disk.
Among other things, Marsh confirmed these core facts:
FAA lawyers have never made the slightest attempt through a booklet or Advisory Circular to explain to airmen the practical aspects of enforcement, for instance:
Marsh confirmed the following matters of basic unfairness:
Marsh agrees:
s/ Lawrence B. Smith
This "whitepaper" explains the basics of the FAA two-track enforcement system. It contains key excerpts from a 460-page transcript of a voluntary statement by John E. Marsh Jr., long-time FAA lawyer and expert in the agency's enforcement program. The statement, similar to a deposition, was taken by myself February 10, 1996, in Arlington, Virginia. It is the first time any FAA lawyer has ever explained how that program works and submitted himself to questions about the serious problems it poses. [2]
Why is this important? In the Air Commerce Act of 1926 Congress carefully chose civil-money penalties with right to jury trial as the only enforcement system for safety violations. (Marsh Exhibit 1(b)) This was renewed in the Civil Aeronautics Act of 1938 (Marsh Exhibit 2(b)), then the Federal Aviation Act of 1958 (FA Act). (Marsh Exhibit 3(c)) At no time has the Congress ever held hearings to authorize use of punitive suspensions and revocations, nor has the public, through rulemaking procedures, ever had a say in their creation or use.
It is simple fact: no statute, not even a rule, [3] so much as hints at a connection between safety violations and suspension or revocation of pilot, mechanic or operator certificates. (In other words, this system of administrative justice exists only in the minds of those who impose it.) Yet from 1926 on executive branch officials claimed that in any given enforcement case, even before the airman knew he was being charged with a violation, they could choose the system of justice in which he would be prosecuted and the kind of penalty he would suffer. This meant that even though Congress had mandated the right to "demand" jury trial, the airman could only exercise that right if government officials chose to let him. [4]
(a)(1) Any person who violates (A) any provision of [this Act] or . . . any rule, regulation or order issued thereunder . . . shall be subject to a civil penalty of not to exceed $1,000 for each such violation . . .
(2) Any civil penalty may be compromised by the [Administrator] . . . (Emphasis added) (Marsh Exhibit 3(c))
Section 903, 49 U.S.C. app. § 1473 (1982), reads in (pertinent part:
(a) District of offense or district of arrest
The trial of any offense under this chapter shall be in the district in which such offense is committed [etc.] . . .
(b) Procedure in respect of civil penalties
(1) Any civil penalty imposed or assessed under this chapter may be collected by proceedings in personam against the person subject to the penalty . . . [and] either party may demand trial by jury of any issue of fact, if the value in controversy exceeds $20 . . . (Emphasis added) (Marsh Exhibit 3(c))
This language as been in the law since 1926. FAA lawyers interpret "shall be subject to" to mean: "Only when we say so."
Three times since 1990 in federal district court cases I have had depositions set up for three or four FAA lawyers (Marsh always one of them). In two of them, to stop the depositions, FAA lawyers capitulated:
In the first, they returned an emergency-revoked airtaxi certificate (unheard of). I had instructed the operator to fly the day after the order was served in order to draw action in U.S. District Court where I knew we'd have a shot at depositions. It worked.
In the second, they acceded to a mandatory injunction to publish a lengthy summary of a petition that asked FAA to publish as a Notice of Proposed Rule Making (NPRM) for a comprehensive rule that simply explained how the entire enforcement program works. It was either publish, or let the depositions proceed.
In the third instance, in other litigation, Justice Department counsel agreed to the timing of two of four depositions. They could have appealed the district judge's order authorizing them, thus stalling them, but agreed to not to do so. Yet that same day, right after alerting FAA counsel to what they had agreed to do, they turned right around and filed a motion for an emergency protective order asking the judge to cancel the same depositions they'd just agreed to. It was granted by the same judge who had just approved the depositions.
I have known since 1980, having interviewed major players in FAA enforcement when I was a consultant to the U.S. General Accounting Office on the legal aspects of FAA enforcement, that if they were ever subjected to cross-examination, the authority for their punitive certificate sanction system would be revealed for what it is--non-existent.
While I find it hard to understand how any lawyer could passively accept the reality of how it works, having worked with Marsh in 1967-68 at the FAA, I knew him to be a man of honesty and integrity. He was also helpful in 1980 when I was a consultant to GAO. His agreement to be questioned was an act of courage. Hopefully, it will tip the scales and persuade Congress to conduct oversight that is 70 years overdue.
Virtually every topic Marsh was questioned about is covered by my law review article: FAA PUNITIVE CERTIFICATE SANCTIONS: THE EMPEROR WEARS NO CLOTHES; OR, HOW DO YOU PUNISH A PROPELLER?, 14 Transp. L.J. 59-100 (1985) ("Emperor"). But for years having watched how courts and Congress sidestep consideration of obvious facts, I have known that for these facts to be taken seriously they would have to come from the mouth of an FAA lawyer. So, here they are.[8]
A graduate of Duke University Law School, Marsh spent 30 years as a federal government lawyer; the last 22 at FAA, all but one year in enforcement. Now 72, he retired in 1981 and has since built a successful real estate business that employs his two sons. However, he stayed involved with enforcement and from 1986 to 1991 was a contract instructor to teach the subject to new inspectors at the FAA Academy in Oklahoma City. For much of his FAA career he was in charge of the Enforcement Policy Branch. In 1980 he was the editor from the Office of Chief Counsel (prior to about 1976, called "General Counsel") in a project to consolidate four agency enforcement manuals into a single handbook. Other editors came from Flight Standards and Security. (TR 4-22) Without question, Marsh is an expert's expert on FAA enforcement policy.
The FAA operates two entirely distinct systems of justice: (1) the civil penalty system, where the accused must be prosecuted in U.S. District Court, where he has the absolute right to "demand" trial by jury, [9] and where the only penalty that can be inflicted is a money fine, an amount determined after the airman is found guilty and consideration given to his circumstances; (2) the punitive certificate sanction program where the FAA orders suspension or revocation of the airman's certificate, where he must appeal for a hearing to the NTSB, gets a loose administrative hearing, then, even if he wins at the trial level, the FAA can appeal to the full Board causing him considerable additional anxiety and expense. (TR 163) The only penalty is loss of his license.[10] (Emperor at 62)
The dichotomy -- FA Act § 609, 49 USC § 1429(a) (Marsh Exhibit 3(b)), from whence FAA lawyers claim authority to use license penalties--grounded on vague language about public interest and air safety--is used for two entirely distinct purposes: (1) to suspend or revoke a license strictly as punishment for the violation of a safety rule; (2) to suspend a license until a pilot, for instance, takes a flight test to show he currently meets the qualifications required of his certificate. We have pegged this as a dichotomy. (TR 55-58) (Emperor at 62-63) Questioned about this, Marsh acknowledged it, but sort of waffled and remarked: The FAA's role "is to take whatever action action is appropriate in the interest of aviation safety." (TR 57) "[I]ts goal is not to punish people, the goal is to eradicate that safety threat." (TR 58)
Comment -- That the FAA is not interested in "punishing" a pilot but in promoting air safety is a line frequently used by FAA lawyers. (Emperor at 95-96, n. 197) On its face it is nonsense. It is our opinion this probably got started back in the late 1920s as a ploy to avoid calling attention to the fact a certificate suspension is an alternative penalty to a money fine. Calling a suspension a "penalty" raises the question of what happens to the right to demand jury if officials select certificate action for the same violation they could have sought a civil penalty for; and how is it that the "police department," even before the person is charged, decides what form of penalty he must suffer.[11]
Marsh confirms the truth of this last statement:
Q But the fact is that the FAA officials decide how the person is going to be punished before he is even told he is being charged with anything. That is a fact.
A Yes.
(TR 172)
Although obviously accepted as policy by government lawyers for 70 years now, this straight answer reveals an incredible situation for which in my 39 years as a lawyer no precedent exists--especially when backed up by not a single word in any statute. That it does exist is obviously one reason FAA lawyers have worked so hard to avoid ever being deposed. (Marsh was never involved in this, and was always cooperative the three times he was to be deposed.) I estimate that since FAA was created more than 100,000 airmen and hundreds of small operators have had their licenses suspended or revoked, rather than be "allowed" to pay a money fine. The Office of Chief Counsel for years had an enforcement docket section where statistics could be gleaned, but about ten years ago it was closed. The only way to get them now is very expensive: pay an independent contractor which keeps them on computer. That office never publishes formal statistics, unless asked for a specific congressional hearing. It is my belief that the ratios of civil penalties to certificate actions are now much less favorable to all pilots than they were fifteen years ago. In 1980 and earlier that ratio ran 80% civil penalties for airline pilots, the rest 20% suspensions; 33% for general aviation as a whole; private pilots only 13%! (Emperor at 63) (Marsh Exhibit 26)
This extreme use of license penalties, when contrasted with auto violations where they are only used for serious offenses like drunk and reckless driving and a money fine for everything else, is all the more remarkable when one considers (and Marsh agrees with these facts): 99% plus of all violations are first offenses, most are inadvertent. (TR 115-18) (Emperor at 63)
Marsh's explanation for how choices are made between license penalty and money fine--which pretty much follows the agency enforcement manual--is convoluted and vague. The FAA's "goal is not to punish people, the goal is to eradicate [a] safety threat." (TR 58) Again:
"We are not concerned about punishing the pilot . . . . We are just interested in eliminating, preventing him from doing it again and if we've got to take his certificate away from him, if he's a pilot for example, to prevent that, that's what's done for a serious type thing, if it was knowingly done or whatever." (TR 59)
Isn't that what a trial is for, to judge the character of the offense? How can this be squared with the fact that 99%+ are first offenses? (When airmen complain that the FAA acts as policeman, prosecutor, judge and jury, they speak of reality.) He concedes mistakes are made in the selection of a sanction:
"[I]f you think maybe a $300 civil penalty would be sufficient deterrence for him not to do it again, you wouldn't want to go with a certificate action that is going to cost him thousands of dollars, and vice versa." (TR 60)
Marsh told of handling, early in his career, an airline pilot who clipped some equipment on approach to DCA and knocked off one landing gear. No one was hurt. The case was initiated as a suspension action, but during the informal conference the pilot
was pleading for a civil penalty because he did not want it on his record . . . I felt that this guy doesn't need much deterrence. He is never . . . going to let [it] happen again.[12] He did not have an arrogant attitude toward the FAA. He realized he made a mistake. (Emphasis added)
This exchange, during the "deposition" pretty well sums it up:
Q Now, I think you have pretty well indicated the impact on an individual of suspension can be pretty severe if he's a professional pilot and his job is at stake and a substantial loss of income over a period of one, two, three months or more. Isn't that correct?
A Yes.
Q I mean, if a man is a professional, then you're talking about his right, his livelihood.
A Yes. The FAA looks to see how serious was the violation and what is the appropriate sanction to deter him from future violations.
They're not looking to punish the guy, they don't want to end his career, they want him to continue as a pilot, but we've got to stop this. And so that whole range of judgment enters into this, but you've got to look at all these factors, does he earn his livelihood from it or whatnot, and how would the civil penalty affect him and what is the amount of the civil penalty that we need to do that.
As you say, it's a judgment factor. But that's the way it's determined.
Q And the same thing would be true of a small operator if you're going to revoke them or even suspend them. I mean, you are shutting down a business with employees who don't hold certificates and so forth.
So it's a pretty severe action.
A That's correct. That's correct.
(TR 127-28) Aside from the "sentence first, verdict afterwards" nature of this approach, it is obvious, when suspensions constitute 99%+ of all enforcement actions, virtually no consideration is given any more to the impact on the certificate holder.
Marsh agreed that a memo to me from my division chief, dated November 9, 1967, that responded to a memo I'd sent him only days after I started at the FAA in October 1967, accurately summed up what he (Marsh) was just saying:
I have read with interest your analyses and comments of October 24, 1967, on several Air Carrier and General Aviation Enforcement Cases. I found your views and comments refreshing and you pointed out some areas that I tend to overlook in my day-to-day routine.
I noted that you were particularly concerned about inconsistencies in sanctions between regions, and even in the same regions, for similar violations. This has long been a concern. It must be realized, however, that each case involves different personalities and different facts, which, of course, will influence the sanction decision.
(TR 64-66), (Marsh Exhibit 34)
Comment -- Because Marsh handled the case against the airline pilot as a civil penalty, he gladly compromised and quickly paid a money fine. That had to have saved a great deal of government and defense time. He wasn't going to do it again; if anything, the FAA would have been justified in giving him a checkride before allowing him to fly passengers again. In fact, if the FAA enforcement program is regularized in keeping with principles of justice that have been around for several millennia, so that all but the most extreme violations pay a money fine (like forfeiting collateral), at least 90% of the effort and cost expended by both sides would be unnecessary.
Noting that his students (future inspectors) at the Academy frequently asked "[E]xactly when do we go for a civil penalty, when do we go for a certificate action," Marsh commented:
There are no clean-cut guidelines in the FAA. It's always a very troubling decision to how to answer that because the whole question of the FAA, the Federal Aviation Act gives you broad discretion in these areas.
It's a question of when to apply section 901, when to apply 609 . . . and when to go for administrative enforcement . . . . There is nothing historically in the FAA to give you any clear-cut guidance on that.
(TR 92) (Emphasis added) He notes that at various times the agency has come out with a "so-called laundry list" of sanctions.[13] (TR 92-93)
He agrees that as a general proposition, when an FAA lawyer looks at a case, he's thinking in terms of 30, 60, 90, even 180 days. (TR 94) And, if a civil penalty for an airman, it could be $1 to $1000. (TR 95-96) And since the lawyers usually cite two or three regulations as violated, this can be escalated as high as $3,000. (TR 96)
Obviously FAA lawyers have great latitude in the size of the penalty, which, say, if certificate action, could determine whether a pilot loses his job or not (90 days, instead of 30). Theoretically the NTSB can reduce it, but FAA insists the Board must uphold the amount FAA lawyers set, unless it can furnish a compelling reason for not doing so. With a money fine the pilot keeps working. Even if a substantial amount, FAA will make an installment agreement. (TR 130)
So whether the airman is likely to lose his job or not is strictly in the hands of FAA officials, even before he is tried, found guilty, and consideration given to the impact of the suspension or revocation on his family and/or employer:
Q So, really, this leaves a lot to the subjective determination of the particular officials involved, does it not?
A Yes.
There's no doubt about that.
(TR 104) And he agrees that attitude (as we've already seen, "arrogance") is one criteria. I was a consultant to a Juneau, Alaska, lawyer in 1995. He'd never handled an aviation enforcement case. His client, a professional pilot hoping to move up from airtaxi to bigger iron--as the saying goes--gave two inspectors some lip when they accused him of taking off without checking his wings for ice. He knew he'd done that, and the wings had been deiced, and was upset with their confrontational attitude. According to the lawyer the inspectors made it known they'd urged certificate action rather than civil penalty because of this. I don't know the result, but such a record will virtually ban him from moving up to any substantial carrier, there is just too much competition for such jobs. In a discussion about agency sanction lists, Marsh agreed that "Deciding what sanctions should be for a particular violation has always been a question of judgment and it is a question of no two people agree on the same thing." (TR 311)
One of the ironic consequences of having two systems of justice, with entirely different penalties is this: The FAA's handbook provides that "Civil penalty action is normally used as a sanction in cases where the violator does not hold any current certificates." (Marsh Exhibit 18(f))
Q That's because you can't do anything else to the person, isn't that correct?
A Well, yes.
(TR 98, 140) What this means is that a person caught flying an airplane without a license can only be punished by a money fine, and he has the absolute right to "demand" a jury trial (this was before the new administrative hearing program--which program raises serious constitutional questions in such a situation). Marsh agrees that a similar situation arises because of the NTSB's so-called "stale complaint" rule, which is a self-imposed six-month statute of limitations for suspension violations (created by the CAB about 1942). (Marsh Exhibit 13, p. 4 of 7) In other words, if the FAA is dilatory and has no compelling excuse for not initiating a certificate action within six-months of the date of the violation, the Board won't entertain it. So this lucky airman gets to pay a civil penalty, and enjoy his right to jury trial. (TR 321-22)
Q [I]sn't it a fact that it's a simple factual statement that if the FAA starts a case as a suspension action, then obviously there is never going to be any jury trial . . .
A Well, yes. If you're talking about a certificate action now, the administrative action substitutes for the jury trial.
(TR 154)
After again acknowledging that it is FAA officials who decide whether or not the airman can ever exercise his right to have a jury trial (TR 288-89), Marsh insists "That is the way the procedure is set out by Congress. (TR 289) Yet Marsh cannot give a clear answer as to where to find it.
Q Isn't that a statement of fact?
A Well, it just gives the Administrator broader authority for any of those, the way the FAA interprets it, to take any of the actions. If it's a civil penalty, he can only take a civil penalty for a violation of a regulation. But if you are going for certificate action, then you are not limited to that. You can do it for any reason that [14] shows that there is an unsafe situation that is required in the interest of safety.
Q And those words are strictly--they are the touchstone of the FAA's claim of authority to suspend strictly as a punishment or sanction for a safety violation? Isn't that correct? [15]
A Yes, I think so.
It is almost inherent that any entity that has authority to issue a certificate has authority to take the certificate away.
And we've established already in discussing it that this inherently means that even though Congress said, since 1926, renewed in 1938, renewed in 1958, that you have--that for violations of regulations, you have the right to demand a jury trial.
So we have already established that this source of authority in practical effect, although I don't know that it is stated anywhere, the FAA is claiming that that authority allows them to decide when or if you ever get, the airman gets an opportunity to demand his right to a jury trial.
Isn't that a fair statement?
In other words, the airman cannot--
A I don't follow you.
Q Well let me put it this simply: The airman, if he commits a safety violation, no qualifications' matters involved, the fact is that he will only have an opportunity to have a jury trial and exercise his statutory right to demand a jury trial if the FAA officials who bring the charges decide to put it on the civil penalty track?
A That's right.
The only way the guy gets a jury trial in any of the FAA enforcement procedures is through--is when he is charged with a civil penalty and he does not choose to compromise the civil penalty, the FAA is required to refer the civil penalty to the Department of Justice, and then they file an action in court, and then the airman may elect to have a jury trial.
Q Right.
A That's the only way he has to get a jury trial for any FAA enforcement charges against him. I'll agree on that.
Q Okay. And then--
A And that's what the Federal Aviation Act says. That is the only vehicle, or that's the only situation in which they give him a right to a jury trial.
Q But looking at Exhibit 3-C, page 1 of 3, "PENALTIES, Sec. 901" states: "Any person"--I'll shorten it a little--"Any person who violates ... any provision of titles ... of this Act, or any rule, regulation, or order issued thereunder, ... shall be subject to a civil penalty of not to exceed $1,000 for each such violation:"
A "shall be subject to". It doesn't force the FAA to charge him. It gives the Administrator the authority.
Q But we've already established that thousands of times the airman is charged with the violation but is given a notice of proposed certificate action, and his license is suspended for exactly the same type of violation that he could have been charged with under Title IX, Penalties.
A But the Administrator has that discretion to go certificate action.
Q And this--
A I see nothing in the Act that orders the Administrator to charge the guy with a violation and to go after a civil penalty just because he did violate the regulation.
Q You mean the words "any person who violates any rule, regulation, or order shall be subject to a civil penalty" doesn't--
A He's subject to it. It doesn't mean he shall---
Q It says "shall" be subject to a civil penalty.
A But it doesn't say he shall "pay" a civil penalty.
Q I mean, that's kind of--I don't follow your argument on that. I mean, we know--understand, we agree from reading these exhibits we know that in 1926 we have clear legislative history that states enforcement will be by means of civil administrative penalties and a right to a jury trial. [Marsh Exhibit 4(a)]
A Well, Larry, in your interpretation you would require every guy who has violated the regulation, that the FAA is forced to charge him with a civil penalty?
Q Well it is not what I want to do, so I am trying to figure out if Congress--we're just looking at the facts here.
I am not trying to get you to sit here and mea culpa or--
A As I say, I have no authority one way or the other. All I can say is, this is the way the FAA enforcement--it was the way the FAA officially interprets the regulations, it is the way they apply the regulations, and I don't see it any other way myself.
Q Look, I believe you, because I know you are an honest man. I would not have you here if I didn't know that. So your answers are fine.
But I am asking you, though, I mean we have established beyond purview that the FAA's claim of authority comes from the public interest language in Section 609.
Isn't that a fair statement?
A All I'm saying is, Larry, the questions you are asking me you should be asking a judge, not me.
Q No, I'm--
A Because I have no opinion on them.
Q Well, but you've worked with this system your whole career in the FAA.
A That's right. And I tell you this is the way it is applied. I have not questioned this, and I have not a problem with that, and I am not aware of any attorney who has ever questioned that.
Q Well I think you have already answered this. I am just going over--in a trial before a judge, he would probably say we're repetitive, but I mean the fact is we've established that the FAA claim of authority stems from Section 609 and the language about the public interest and safety in air commerce as a broad grant of authority--
A That's right.
Q --to do whatever is necessary to promote it?
A That's right. And the FAA interprets that as Congress' intent to give the Administrator the broadest authority here, to give him very broad authority.
(TR 300-07)
Comment -- What this lengthy colloquy reveals is that FAA lawyers cannot provide any lawyer-like answer as to how they impose license penalties, except to say Congress told us to go out and promote air safety, therefore, we have the right to decide whether or not the airman can pay a money fine, or exercise his right to "demand" a jury trial, if we think air safety is served better by taking his license from him. If this logic is correct, the FAA could set up its own prison system, and for extremely serious violations order that the pilot should be hung by the neck until dead. But one million active licensed pilots and mechanics, not to say two or three thousand small operators, owe Marsh a debt of gratitude. What his honest answer displays is the psychology of well-meaning lawyers who go to work for the FAA, get caught up in the crusade for air safety and act in good faith.
I was not at the agency in the fall of 1967 more than a few weeks when we saw that this was the great contradiction in the enforcement program. And I still cannot figure how anyone trained as a lawyer could accept the idea that Congress in 1926, producing specific legislative history showing that serious consideration was given to enforcement, which led to specific statutory language for money fines with right to jury trial, would then, by a general 1938 mandate to promote air safety, intend that executive branch officials take away those rights and substitute for them a system of justice and form of penalty for which there is not a hint in any statute. And it is simply incredible to me that others trained as lawyers didn't see it. Since Emperor was published in 1985, however, there is no excuse for this kind of ratiocination.
What really had to have happened is that Commerce Department officials, who were first charged with regulating aviation, didn't like the civil penalty program--too slow and cumbersome if an airmen refused to settle--so grafted violations onto an crude administrative hearing program authorized by the Air Commerce Act of 1926 which was plainly intended for qualifications matters. Aviation officials ever since, clearly sensitive to the position they were in, rather than go to Congress and ask for a sensible program, have covered up their lack of authority for license penalties. [16]
The real reason certificate actions are so heavily used is the fact it is easier for FAA lawyers to keep control of the case. Even though 99 out of 100 airmen, if given a chance to pay a reasonable compromise fine, would do so, FAA lawyers are worried that one person might get away with never paying anything because he might know that U.S. Attorneys are reluctant to prosecute such cases. (Emperor at 81) Marsh verified this, and agreed that from a human standpoint this puts pressure on agency lawyers to use certificate action. (TR 131-37). (See Marsh Exhibits 24(a)&(b)) The latter exhibit, #24(b), is a letter from an FAA regional counsel urging that most violations be prosecuted as certificate actions because the agency has a much better chance of winning the case when tried before the NTSB than in U.S. District Court: "[W]e would recommend . . . you consider substituting certificate actions in lieu of civil penalties in most instances, the obvious reason being, of course, that success in imposing a sanction will greatly depend upon the forum of the case." (TR 314) (Marsh Exhibit 24(b)) Marsh agreed that it is easier to go the certificate route than trying to educate U.S. Attorneys and district judges. (TR 315)
It is an astounding fact that the Federal Aviation Administration, besides no statute (TR 326), does not have a single enforcement rule that hints at a connection between commission of a safety violation and suspension or revocation of an airman or operator certificate. Marsh confirmed this. (TR 325) To get it in this record, I called his attention to the fact that the word "violation" or derivatives appears in several other rules related to enforcement, e.g., FAR 13.11, 13.15, 13.16. Yet no hint of violation or offense occurs in FAR 13.19, the rule which basically repeats the language of FA Act § 609 on which FAA lawyers base their claim of authority to suspend or revoke a license as a penalty. I called to Marsh's attention FAA Order 1009.C (1979). (TR 421-424) (Marsh Exhibit 19) It is a statement of general enforcement policy. The term "violation", or equivalent, is used 28 times.
Why is the term not used in any rule connected with certificate action?
No license penalty rule -- Marsh agreed there is not only no statute that hints at the connection, but no rule either:
Q All right, let's talk about the regulations that are not on the books. . . .
One, as a basic proposition, and I submit this as a fact and you can correct me if I am wrong, the FAA has no regulation that tells airmen that if you commit a violation, you can lose your license as a, whatever you call it, sanction, punishment, because air safety requires and so forth?
Isn't that a fact?
A Yes, there is no regulation that spells it out like that.
I think every airman realizes that if you violate the FARs, depending on the situation, you could have action against your certificate.
Q How would he find that out?
A Other than plain common sense, is all I know Larry.
(TR 323-24)
At a meeting in June of 1980 between myself, GAO officials and several FAA lawyers, the first question I opening the meeting with was directed to then Deputy Chief Counsel Jonathan Howe:
Q "Jonathan, how do you justify this important regulatory agency not having a rule that warns pilots and mechanics that they licenses are at risk for the violation of a safety regulation?"
A Oh, everybody knows how the system works, anyway.
Later, I asked a Justice Department lawyer whether or not she thought there ought to be such a rule. Her answer: "Oh, I knew by my second flying lesson that I could lose my license for a violation." So much for the Rule of Law. Marsh did agree it would be better if people knew they could get a severe penalty for a safety violation. "I'm an advocate of furnishing as much information as possible to people to let them know." (TR 333)
Shift in sanctions -- There is, of course, no rule that tells the public that FAA officials, before initiating action, can choose between two entirely disparate systems of justice. A counterpart of this, one of the most critical FAA policies not incorporated in a rule where airmen can know about it, is the fact that after starting that case as a suspension action, the FAA lawyer can shift it to a civil penalty when he learns "that the proposed suspension would constitute a sanction much more severe than is warranted by the violation." (Marsh Exhibit 18(l)) Marsh confirmed the existence of this policy, which is plainly set out in the FAA manual. He further agreed that 1980 and earlier 35% was a reasonable figure (Emperor at 79, n. 115) for the percentage of paid civil penalties which started as suspension actions. (TR 144-45) (Recall, this is exactly what he did for the airline pilot who ripped off one landing gear at DCA.) The shift can work the other way, civil penalty to suspension. (TR 147) [17] The FAA lawyer has final authority whether or not to allow it. (TR 149) It is not finalized until he has check in hand, or an installment agreement. (TR 151-52)
In a memorandum appended to a CAA manual General Counsel R.E. Elwell noted the "unfavorable public reaction" to shifts from suspension actions to civil penalties as it was "criticized as 'black jacking.'" He instructed his lawyers to make the shift only "under unusual circumstances." (Emperor at 79, n. 114) Of course, this never stuck. But the reason is simple, FAA lawyers started cases pursuant to policy as suspension actions (as seen, because it was easier), but then learned they were really going to harm the pilot out of all proportion to the offense by taking his license, so let him switch.
Now that the FAA has an administrative hearing program for individual airman, and the cases tried at the same place they take suspension actions, one would think they'd exercise a little humanity and initiate all but the most serious violations as civil penalties. But old habits die hard.
The lengthy exchange on this subject between Marsh and myself is well worth reading. (TR 354-59) It reveals the rather lackadaisical attitude of FAA lawyers towards informing the public how the enforcement system works. The fact is that many airman over the decades did not know they could ask for the shift. Marsh: "I suppose there would be no harm in that . . ." (TR 354)
If anyone still cannot come to grips with the fact that FAA officials decide whether or not an airman can exercise his right to demand jury trial, he should ask himself: If a shift in sanctions is made from license penalty to money fine, what happened to the airman's right to jury? Had FAA lawyers started the case on that track in the first instance, there's no argument but what he'd have been able to exercise that right.
Compliance disposition -- For reasons that are explained in my law review article, the CAB long ago determined that revocation could not be used as punishment. (Emperor at 85-86) This should be, but is not, in a rule. Nine hundred and ninety-nine times out of a thousand, in my considerable experience, where alleged violations are involved, revocation is used as punishment. The way government aviation lawyers got around this was to invent the concept--and sell it to the CAB--that if the violation was egregious, or the certificate holder guilty of repeated violations, it demonstrated that he lacked the "care, judgment and responsibility" required of any certificate holder, and, therefore, the qualifications to hold the certificate. Thus cleverly turning what was really intended as severe punishment into a qualifications matter for which a certificate could be revoked. In 1964 the CAB [18] ruled in Petition of Sichel, 39 C.A.B. 975 (1964), that the FAA could not employ the policy because they had not put it in a rule. (Marsh Exhibit 30) As a basis for its holding the CAB cited both due process concepts and Administrative Procedure Act (APA) requirements. For more than 30 years now, FAA lawyers have ignored this ruling. Marsh agreed that the FAA should be bound by the Sichel decision. (TR 380)
This subject is covered in depth, TR 359-380, but should be read in conjunction with the rest of his statement to the end at page 460.
This is not the place to go into a detailed analysis of the APA. It is safe to say, however, that every FAA policy that is part of the agency's enforcement program should be in a rule, and the fact they are not is a violation of the APA. The reason for this--spelled out in Emperor as one facet of the coverup that has gone on now for 70 years--is easy to understand: putting any of these policies through APA Notice of Proposed Rule Making procedures, which involves the public, would expose all the problems with the program. (Emperor at 82-95)
FAA Order 2100.13 -- How many in aviation are aware of FAA Order 2100.13? It commands FAA personnel to involve the public in rulemaking and that both the letter and spirit of the APA shall be observed. (Marsh Exhibit 20) (Emperor at 94, n. 188) Moreover, that this same order charges the Office of Chief Counsel to be responsible for making sure policies are in rules and reviewing internal directives "to assure they are neither used for nor have the effect of regulations and are consistent with the regulations"? To say that FAA lawyers consistently thumb their noses at this directive is to grossly understate the matter.
The in-house hearing program -- Two important matters serve as excellent examples of this disdain for law. In 1962, then Administrator Najeeb Halaby ordered that an in-house hearing program be initiated for certificate actions. This was done because of the "Sentence first--verdict afterwards" nature of FAA enforcement. In other words, the agency was issuing an order of suspension for a violation even before the airman had been found guilty of it. When the FAA lawyers adopted the rules for this new program (an entire system of in-house justice) they did not put it through APA rulemaking procedures. In other words, the public was not involved. (Marsh Exhibit 38) Yet eight years later, when the agency decided to abandon it (with the blessings of the now dissolved Administrative Conference of the U.S., given because the FAA hearing simply duplicated the NTSB hearing and airline pilots were using it as a free forum for discovery purposes) the change was publicized with a regular NPRM notice which gave the public a chance to object, or approve. (Marsh Exhibit 39) The FAA lawyers couldn't risk involving the public in creating the program, but there was no such risk with the issue of whether or not to get rid of it. With ACUS backing, it was pretty clear it would be canceled no matter how much the public might have wanted to keep it. Marsh tacitly agreed that it didn't make sense not to involve the public in creating the program, but to do so in dissolving it. (TR 440-41)
Civil penalty rule -- The second example not only further illustrates FAA lawyer disdain for following the APA, but was clearly part of the continuing coverup of their lack of authority for punitive certificate sanctions. There can be no other reason for what happened. (This was not discussed with Marsh due to lack of time, but he would have had no part in what happened anyway as he never had responsibilities regarding rulemaking.)
When the FAA was created in 1958 it carried over as its own rules those of the Civil Aeronautic Administration (CAA). The CAA civil penalty rule, 14 CFR § 408.23 (1962), correctly quoted FA Act § 901:
Under section 901 of the Act, any person who violates any provision of . . . the Act, or any rule, regulation or order issued thereunder shall be subject to a civil penalty not to exceed $1,000 for each such violation. Such civil penalty may be compromised by the Administrator. . . . (Emphasis added)
(Marsh Exhibit 11 at p.1) In 1962 the FAA conducted a program to recodify all the old CAA rules with new numbers. For instance, enforcement procedures, which had been Part 408, were changed to their present designation of Part 13. To do this, all the rules were republished in the Federal Register as an NPRM with the proposed new numbers. The Notice for this recodification program stressed that no rules were being changed or proposed, and when they were that the APA would be followed. Taking advantage of this republication, FAA lawyers rewrote the civil penalty rule so that it that misstated section 901 in the renumbered rule, 14 CFR 13.15 (1963) Civil penalties:
(a) Under section 901 of the Federal Aviation Act of 1958 (49 U.S.C. 1471), a person who violates any provision of . . . that Act, or any regulation or order . . . is subject to a civil penalty of not more than $1,000 for each violation. . . . (Emphasis added)
(Marsh Exhibit 11 at p.2) The only conceivable reason for deliberately misrepresenting the law, as it has read since 1926, was this: As the use of suspensions increased under Administrator Elwood Quesada's rigid enforcement regime (1958-1962), more and more airmen subjected to certificate actions were asking why they could not pay a money fine since the language of the FAA's own rule was so explicit that they ought to be able to do so under the law. To quell these embarrassing enquiries, FAA lawyers simple rewrote the law.
Under section 609, when they initiate suspension action, FAA officials can declare to the NTSB that an emergency exists requiring the immediate effectiveness of the order. The Board then must bring the case to decision within 60 days, as provided by the section. In other words, the otherwise automatic stay of the effectiveness of the order is voided. This means a hurried trial, and almost always an appeal to the full Board, usually by the certificate holder. This power is discussed at some length with Marsh (TR 333-350), so we won't take the time to go into it in any depth here, except to point out the serious constitutional problem it poses: no immediate hearing is provided in which the operator or airman can challenge the claim that an emergency exists. I have had a great deal of experience with these cases, as the lawyer representing the airtaxi, and have learned details of many others.
Almost never is there a true emergency. The order usually comes weeks or months after an indepth inspection of a small operator, any real violations or problems long straightened out. What really happens, especially if local officials think the operator, or any of his employees, have been pencil-whipping records, decide they can't trust him, so must put him out of business. It is a method of summary execution. At an appropriate time, I can deliver case histories of such abuses of the power that it would make any believer in the Rule of Law ill.
Little, if any, of this would happen if there were a hearing in which the claim of emergency could be challenged. As Marsh and I discussed, two cases have actually held this lack to be a violation of the Fifth Amendment right to due process--which it surely is. In one case, United States v. Harper, 335 F.Supp. 904 (D. Mass. 1972), the renowned Boston U.S. District Judge Charles Wyzanski likened the power to a judicial temporary restraining order, for which the rules require a hearing within 10 days to determine its necessity. In other words, he held the emergency power unconstitutional. This, of course, did not phase FAA lawyers one bit--the case was ignored.
In 1980 along came Nevada Airlines, Inc. v. Bond, 622 F. 2d 1017 (9th Cir. 1980) The Ninth Circuit recognized that a business could be easily destroyed within the 60-day period in which the Board is required to make a decision. It then held the lack of a hearing to be a violation of due process. However, because another section of the FA Act directed that review of FAA orders was within the jurisdiction of the courts of appeals, the Ninth Circuit held that it would provide the hearing. This was a silly decision. Congress well knows that courts of appeals are not set up to be trial courts, and no language in the statute hinted at such. The decision reflects the reticence of appeals court to take steps they think might hinder the FAA. It was stretching a statutory directive beyond all meaning. That court should have simply declared emergency power unconstitutional. This would not have left FAA officials bereft of any remedy for illegal activity: the Act provides a specific section for the FAA to go to U.S. District Court for injunctions, even punitive damages. Once again, FAA lawyers have done nothing except to warn regional counsel in their manual to advise Washington if any persons or operator subject to an emergency order seeks to use that case for some sort of judicial relief.
Watching 143 people lose their livelihoods in a Tucson operation in 1985 is what motivated me into working to force reform of FAA enforcement. It took only the stroke of a pen. There was absolutely no emergency. The list of charges used to justify revocation and the emergency were a joke. I produced a small book about that episode, which is noted in the list of my publications. This prompted me to come up with a method to get a hearing from a court of appeals. It simply involved petitioning such a court for an extraordinary writ asking it to appoint a master (district judge or magistrate) to conduct the hearing.
Oddly--or perhaps not, given its reputation--in two 9th Circuit cases where I asked this of of the court it simply couldn't come to grips with the problem. I did, however, get a temporary restraining order for a small Alaska airtaxi from two veteran 9th Circuit judges that lasted a week until a regular emergency panel got ahold of it. But as Senator Ted Stevens will remember, it was the first time anyone had broken that particular legal sound barrier. It stirred up a lot of publicity in Alaska. That led Senator Stevens to ask Senator Wendell Ford of Kentucky, then Aviation Subcommittee chairman, for permission to hold two days of hearings in Alaska in December 1989 on the emergency power. Ford turned him down. That was an unfortunate decision. I was to be a key witness and could have laid out the problems, chapter and verse, of the draconian nature of the emergency power, the shear un-American brutality of it. It should be a central part of any look at enforcement. Marsh agrees that enforcement should be looked at by Congress.
Lack of rule -- It goes without saying that for an agency to run a system of justice without a hint of its existence in any official federal publication is the height of unfairness. But things don't stop there.
Civil penalty limit -- Under the Air Commerce Act of 1926 the Commerce Secretary could "remit" or "mitigate" a civil penalty, the maximum of which was $500. The law provided that what he determined was "final" (Marsh Exhibit 1(b), p.2 of 2). This was interpreted to mean that if the Secretary remitted the fine to $50, say, that is all that the U.S. Attorney could file suit for if the airman refused to pay--for whatever reason. This was eminently fair. "The usual fine was $25." (Marsh Exhibit 33, p.3 of 3)
In the Civil Aeronautics Act of 1938, however, this language was dropped, the maximum raised to $1,000. Remit and mitigate was changed to "compromise," which meant the same thing. Thereafter, if the airman refused to settle, he would be sued for $1,000. There is no legislative history that indicates Congress intended to change this due process policy. Even worse, FAA officials always load up what is a single event with two or three regulations violated. So a refusal to settle for $100 could be turned into a suit for $3,000, a not so subtle form of blackmail by government. Marsh confirmed this to be the practice. (TR 231).
Informing the public -- Marsh confirmed that FAA has never prepared a booklet for the public that explains how its enforcement program works. (TR 173) (By now, the reason for this should be apparent.) The Notice of Proposed Certificate Action does explain certain options: ask for an informal conference, appeal straight to the NTSB for a hearing (trial), etc.). What the airman is never told is that an Administrative Law Judge (ALJ) will come to the city where the airman lives, or at least one within a reasonable distance; that the trial is less formal than district court, many airman represent themselves (often this is an advantage), and there are no court costs. (TR 174-75) I pointed to out Marsh that when I was a consultant to GAO, during an interview with an FAA regional counsel, when asked about this lack of telling the public how the system works, he replied: "If we told pilots how easy it was to go to trial at NTSB, we would be swamped with trials." (Emperor at 83) This philosophy of not letting the public in on agency policies is spelled out, interestingly, in a 1960 inspectors' enforcement manual:
Manual of Procedure 22 is an internal Agency issuance and is intended solely for the use and guidance of Agency personnel. The contents shall not be released to anyone outside of the Agency nor shall any reference to this manual be cited in oral or written communications to the public.
(Marsh Exhibit 15, p.2 of 4) It took the Freedom of Information Act, eight years later, to specifically require agencies to make these kind of manuals available to the public.
Airman wins, so what? -- In traffic court or criminal trials, if the accused defeats the prosecution that is the end of it. That would be the case with a civil penalty. Not so with a certificate action. If the ALJ rules for the airman, the FAA can appeal. If he's been representing himself--obviously successfully--"It becomes an expensive proposition for him." Marsh: "Right." "And he's really behind the eight ball if he doesn't have the money to hire a lawyer." Marsh: "That's true." (TR 163)
Letter of investigation -- When the FAA learns of a possible violation, it sends the airman a Letter of Investigation (LOI). That letter tells him about the incident he may have been involved in, and suggests that he may have broken some regulation(s). It solicits his response, implying that it might stop matters there if he just explains it. (Marsh Exhibit 18(i)) The problem with this is that his response will be used against him in trial as an admission, yet he is not warned of this. (TR 177-78) In the same interview with the regional counsel referred to above, he stated: "If we didn't get that letter in response, we couldn't prove half our cases."
On top of this unfairness officials are instructed: "Specific sections of the Federal Aviation Regulations should not be cited unless specific regulatory reference is needed to accurately identify the incident." Marsh explained that this admonition is there so that the LOI doesn't sound like a formal charge. He also said the FAA was concerned the inspector might cite the wrong regulation. He argued that the policy, for this reason, was for the benefit of the airman. But after a lengthy colloquy he admitted that it did put the airman and his lawyer behind the eight ball. (TR 180-88) If the airman decides to write the letter, how can he argue he did not commit any violation if the FAA does not tell him which one he violated? [19]
Let me close with this anecdote: When I was a consultant to the GAO in 1980 I had lunch in the Rayburn House Office Building with the aviation aide to Congressman Barry Goldwater, Jr. This chap had been an FAA inspector. In talking about enforcement, with rather obvious sarcasm, he stated "We get 40 letters a month from pilots on these problems." He was plainly implying they had no basis for complaint, and were just citizens whining about the government. Perhaps now congressmen and their aides can understand why the enforcement system is held in such contempt by the aviation community--a sad comment about the state of our government.